As you may be are aware I am in the process of writing a book on
childcare regulation, specifically a guide to the National Scheme (Education and Care Services National Law and Regulations). I intend to publish this in February 2018. In
the interim, I have been publishing draft extracts on this blog and would appreciate any feedback. I previously published a draft of the section on Supervision
(see post) and in this post I am publishing the section on punishment and discipline of children:
Corporal Punishment
Section 166 prohibits children being subjected to corporal punishment:- The approved provider (s.166(1)(a)), nominated supervisor (s.166(2)(a)), and staff member [1] or volunteer [2] (s.166(3)(a)) must ensure that no child being educated and cared for by the service is subjected to any form of corporal punishment
- a FDC educator must not subject any child being educated and cared for by the educator as part of the service to any form of corporal punishment. (s.166(4)(a))
It is an offence
to subject a child to corporal punishment with the penalty being up to $10,000
in the case of an individual, and $50,000 in any other case.
What is Corporal Punishment Under Section 166?
The National Law
does not define what constitutes corporal punishment, but it has been defined
as: [3]
Administration of physical pain in order to (1) make a wrongdoer suffer
for the wrong, and (2) attempt to change future behaviour by the wrongdoer and
others…
In the context
of children, according to Child Family Community Australia: [4]
Corporal punishment is defined as the use of physical force towards a
child for the purpose of control and/or correction, and as a disciplinary
penalty inflicted on the body with the intention of causing some degree of pain
or discomfort, however mild. Punishment of this nature is referred to in
several ways, for example: hitting, smacking, spanking, and belting (Cashmore
& de Haas, 1995). Although most forms of corporal punishment involve
hitting children with a hand or an implement (such as a belt or wooden spoon),
other forms of corporal punishment include: kicking, shaking, biting and
forcing a child to stay in uncomfortable positions (United Nations Committee on
the Rights of the Child, 2006). The desired outcome of physical punishment is
child compliance with adult directives (Gawlik, Henning, & Warner, 2002;
Smith, Gollop, Taylor, & Marshall, 2004).
Discipline of Children
Section 166 also
prohibits children being subjected to any discipline that is unreasonable in
the circumstances:
- the approved provider (s.166(1)(b), nominated supervisor (s.166(2)(b)), and staff member [5] or volunteer [6] (s.166(3)(b)) must ensure that no child being educated and cared for by the service is subjected to any discipline that is unreasonable in the circumstances.
- a FDC educator must not subject any child being educated and cared for by the educator as part of the service to any discipline that is unreasonable in the circumstances. (s.166(4)(b)
It is an offence
to subject a child to any discipline that is unreasonable in the circumstances
with the penalty being up to $10,000 in the case of an individual, and $50,000
in any other case.
What is Discipline Under s.166?
This term is not
defined in the National Law. However, reference to discipline in this context
seems to refer to punishment outside of corporal punishment, i.e. beyond
physical punishment (see definition above). According to a Victorian Department
of Education and Training practice note in respect to s.28 of the Children’s Services Act, which is in the
same terms as s.166: [7]
‘Discipline’, in the way the term is used in the Victorian Act, can be
defined as something that adults do to children to punish them in order to
enforce obedience.
Section 166
appears to prohibit punishment (other than corporal punishment) aimed at
enforcing obedience of the child that is unreasonable in the circumstances. The
National Law does not prohibit the punishment of children for the purpose of
discipline. However, it does prohibit discipline that is unreasonable. Whether
the discipline was reasonable or not will depend on the individual
circumstances of each case. This brings in concepts of proportionality: was the
nature and type of discipline given appropriate given the general
circumstances, including the child’s behaviour? This involves looking at the
situation from the point of view of a reasonable person in the situation of the
person who used the discipline. It appears that the concept is similar to that
applied in Tort Law: "that which is reasonable in the circumstances, that
which a reasonably prudent man would exercise in the circumstances". [8]
[1]
See s.5(1) for definition of staff member.
[2]
See s.5(1)) for definition of volunteer.
[3]
Australian Law Dictionary, 2nd
ed., Oxford University Press, South Melbourne, 2015.
[4]
Corporal punishment: Key issues, CFCA
Resource Sheet— March 2014 (https://aifs.gov.au/cfca/publications/corporal-punishment-key-issues,
accessed 1 April 2016).
[5]
See s.5(1) for definition of staff member
[6]
See s.5(1) for definition of volunteer.
[8] Riverman v Orchards Pty Ltd v Hayden [2017] 379, para.199.
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